CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS

WATER CODE

TITLE 2. WATER ADMINISTRATION

SUBTITLE B. WATER RIGHTS

CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 12.001. DEFINITIONS. The definitions contained in

Subchapter A, Chapter 11 of this code apply to this chapter.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977.

SUBCHAPTER B. GENERAL POWERS AND DUTIES RELATING TO WATER RIGHTS

Sec. 12.011. PERMIT APPLICATIONS. The commission shall receive,

administer, and act on all applications for permits and permit

amendments:

(1) to appropriate public water for beneficial use or storage;

or

(2) to construct works for the impoundment, storage, diversion,

or transportation of public water.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.

Sept. 1, 1985.

Sec. 12.012. EVALUATION OF OUTSTANDING PERMITS. The commission

shall actively and continually evaluate outstanding permits and

certified filings and shall carry out measures to cancel wholly

or partially the certified filings and permits that are subject

to cancellation.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.

Sept. 1, 1985.

Sec. 12.013. RATE-FIXING POWER. (a) The commission shall fix

reasonable rates for the furnishing of raw or treated water for

any purpose mentioned in Chapter 11 or 12 of this code.

(b) The term "political subdivision" when used in this section

means incorporated cities, towns or villages, counties, river

authorities, water districts, and other special purpose

districts.

(c) The commission in reviewing and fixing reasonable rates for

furnishing water under this section may use any reasonable basis

for fixing rates as may be determined by the commission to be

appropriate under the circumstances of the case being reviewed;

provided, however, the commission may not fix a rate which a

political subdivision may charge for furnishing water which is

less than the amount required to meet the debt service and bond

coverage requirements of that political subdivision's outstanding

debt.

(d) The commission's jurisdiction under this section relating to

incorporated cities, towns, or villages shall be limited to water

furnished by such city, town, or village to another political

subdivision on a wholesale basis.

(e) The commission may establish interim rates and compel

continuing service during the pendency of any rate proceeding.

(f) The commission may order a refund or assess additional

charges from the date a petition for rate review is received by

the commission of the difference between the rate actually

charged and the rate fixed by the commission, plus interest at

the statutory rate.

(g) No action or proceeding commenced prior to January 1, 1977,

before the Texas Water Rights Commission shall be affected by the

enactment of this section.

(h) Nothing herein contained shall affect the jurisdiction of

the Public Utility Commission.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977.

Sec. 12.014. USE OF COMMISSION SURVEYS; POLICY. The commission

shall make use of surveys, studies, and investigations conducted

by the staff of the commission in order to ascertain the

character of the principal requirements of the district regional

division of the watershed areas of the state for beneficial uses

of water, to the end that distribution of the right to take and

use state water may be more equitably administered in the public

interest, that privileges granted for recognized uses may be

economically coordinated so as to achieve the maximum of public

value from the state's water resources, and that the distinct

regional necessities for water control and conservation and for

control of harmful floods may be recognized.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.

Sept. 1, 1985.

Sec. 12.015. POWER TO CONDEMN WORKS. (a) The commission may

condemn existing works if their existence or operation may, in

the judgment of the commission, become a public menace or

dangerous to life and property.

(b) In all cases of proposed condemnation, the commission shall

notify the interested party of the contemplated action and shall

specify a time for him to appear and be heard.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977.

Sec. 12.016. POWER TO INSPECT. The executive director or his

authorized agent may inspect any impoundment, diversion, or

distribution works during construction to determine whether or

not they are being constructed in a safe manner and whether or

not they are being constructed according to the order of the

commission.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977.

Sec. 12.017. POWER TO ENTER LAND. Any member or employee of the

commission may enter any person's land, natural waterway, or

artificial waterway for the purpose of making an investigation

that would, in the judgment of the executive director, assist the

commission in the discharge of its duties.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.

Sept. 1, 1985.

SUBCHAPTER C. PROJECTS

Sec. 12.051. FEDERAL PROJECTS. (a) In this section:

(1) "Federal project" means an engineering undertaking or work

to construct, enlarge, or extend a dam, lake, reservoir, or other

water-storage or flood-control work or a drainage, reclamation,

or canalization undertaking or any combination of these financed

in whole or in part with funds of the United States.

(2) "Engineering report" means the plans, data, profiles, maps,

estimates, and drawings prepared in connection with a federal

project.

(3) "Federal agency" means the Corps of Engineers of the United

States Army, the Bureau of Reclamation of the Department of

Interior, the Soil Conservation Service of the Department of

Agriculture, the United States Section of the International

Boundary and Water Commission, or any other agency of the United

States, the function of which includes the conservation,

development, retardation by impounding, control, or study of the

water resources of Texas or the United States.

(b) When the governor receives an engineering report submitted

by a federal agency seeking the governor's approval of a federal

project, he shall immediately forward the report to the board for

its study concerning the feasibility of the federal project.

(c) The board shall hold a public hearing to receive the views

of persons and groups who might be affected by the proposed

federal project. The board shall publish notice of the time,

date, place, nature, and purpose of the public hearing once each

week for two consecutive weeks before the date stated in the

notice in a newspaper having general circulation in the section

of the state where the federal project is to be located or the

work done.

(d) After hearing all the evidence both for and against approval

of the federal project, the board shall enter its order approving

or disapproving the feasibility of the federal project, and the

order shall include the board's reasons for approval or

disapproval.

(e) In determining feasibility, the board shall consider, among

other relevant factors:

(1) the effect of the federal project on water users on the

stream as certified by the commission;

(2) the public interest to be served;

(3) the development of damsites to the optimum potential for

water conservation;

(4) the integration of the federal project with other water

conservation activities;

(5) the protection of the state's interests in its water

resources; and

(6) the engineering practicality of the federal project,

including cost of construction, operation, and maintenance.

(f) The board shall forward to the governor a certified copy of

its order. The board's finding that the federal project is either

feasible or not feasible is final, and the governor shall notify

the federal agency that the federal project has been either

approved or disapproved.

(g) The provisions of this section do not apply to the state

soil conservation board as long as that board is designated by

the governor as the authorized state agency having supervisory

responsibility to approve or disapprove of projects designed to

effectuate watershed-protection and flood-prevention programs

initiated in cooperation with the United States Department of

Agriculture.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.032, eff.

Sept. 1, 1985; Acts 1987, 70th Leg., ch. 20, Sec. 1, eff. Sept.

1, 1987.

Sec. 12.052. DAM SAFETY. (a) The commission shall make and

enforce rules and orders and shall perform all other acts

necessary to provide for the safe construction, maintenance,

repair, and removal of dams located in this state.

(b) Rules and orders made by the commission shall be made after

proper notice and hearing as provided in the rules of the

commission.

(c) If the owner of a dam that is required to be constructed,

reconstructed, repaired, or removed in order to comply with the

rules and orders promulgated under Subsection (a) of this section

wilfully fails or refuses to comply within the 30-day period

following the date of the commission's final, nonappealable order

to do so or if a person wilfully fails to comply with any rule or

other order issued by the commission under this section within

the 30-day period following the effective date of the order, he

is liable to a penalty of not more than $5,000 a day for each day

he continues to violate this section. The state may recover the

penalty by suit brought for that purpose in the district court of

Travis County.

(d) If the commission determines that the existing condition of

the dam is creating or will cause extensive or severe property

damage or economic loss to others or is posing an immediate and

serious threat to human life or health and that other procedures

available to the commission to remedy or prevent the occurrence

of the situation will result in unreasonable delay, the

commission may issue an emergency order, either mandatory or

prohibitory in nature, directing the owner of a dam to repair,

modify, maintain, dewater, or remove the dam which the commission

determines is unsafe. The emergency order may be issued without

notice to the dam owner or with notice the commission considers

practicable under the circumstances. The notice does not have to

comply with Chapter 2001, Government Code.

(e) If the commission issues an emergency order under authority

of this section without notice to the dam owner, the commission

shall fix a time and place for a hearing which shall be held as

soon as practicable to affirm, modify, or set aside the emergency

order. The notice does not have to comply with Chapter 2001,

Government Code. If the nature of the commission's action

requires further proceedings, those proceedings shall be

conducted as appropriate under the Administrative Procedure and

Texas Register Act, as amended (Article 6252-13a, Vernon's Texas

Civil Statutes).

(f) Nothing in this section or in rules or orders made by the

commission shall be construed to relieve an owner or operator of

a dam or reservoir of the legal duties, obligations, or

liabilities incident to ownership or operation.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,

eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.033,

eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(63),

eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1010, Sec. 3.04,

eff. Sept. 1, 1997.

SUBCHAPTER D. WATER DISTRICTS

Sec. 12.081. CONTINUING RIGHT OF SUPERVISION OF DISTRICTS AND

AUTHORITIES CREATED UNDER ARTICLE III, SECTION 52 AND ARTICLE

XVI, SECTION 59 OF THE TEXAS CONSTITUTION. (a) The powers and

duties of all districts and authorities created under Article

III, Section 52 and Article XVI, Section 59 of the Texas

Constitution are subject to the continuing right of supervision

of the State of Texas by and through the commission or its

successor, and this supervision may include but is not limited to

the authority to:

(1) inquire into the competence, fitness, and reputation of the

officers and directors of any district or authority;

(2) require, on its own motion or on complaint by any person,

audits or other financial information, inspections, evaluations,

and engineering reports;

(3) issue subpoenas for witnesses to carry out its authority

under this subsection;

(4) institute investigations and hearings using examiners

appointed by the commission;

(5) issue rules necessary to supervise the districts and

authorities, except that such rules shall not apply to water

quality ordinances adopted by any river authority which meet or

exceed minimum requirements established by the commission; and

(6) the right of supervision granted herein shall not apply to

matters relating to electric utility operations.

(b) The commission shall prepare and submit to the governor,

lieutenant governor, and speaker of the house a report of any

findings made under this section.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.034, eff.

Sept. 1, 1985; Acts 1989, 71st Leg., ch. 196, Sec. 2, eff. Aug.

28, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 11.283, eff. Sept.

1, 1995.

Sec. 12.082. DUTY TO INVESTIGATE FRESH WATER SUPPLY DISTRICT

PROJECTS. (a) In this section:

(1) "District" means fresh water supply district.

(2) "Designated agent" means any licensed engineer selected by

the executive director to perform the functions specified in this

section.

(b) The commission shall investigate and report on the

organization and feasibility of all districts created under

Chapter 53 of this code which issue bonds under the provisions of

that chapter.

(c) A district that wants to issue bonds for any purpose shall

submit to the commission a written application for investigation,

together with a copy of the engineer's report and a copy of the

data, profiles, maps, plans, and specifications made in

connection with the engineer's report.

(d) The executive director or his designated agent shall examine

the application and other information and shall visit the project

and carefully inspect it. The executive director or his

designated agent may ask for and shall be supplied with

additional data and information requisite to a reasonable and

careful investigation of the project and proposed improvements.

(e) The executive director or his designated agent shall file

with the commission written suggestions for changes and

improvements and shall furnish a copy of the suggestions to the

board of the district. If the commission finally approves or

refuses to approve the project or the issuance of bonds for the

improvements it shall make a full written report, file it in its

office, and furnish a copy of the report to the board of the

district.

(f) During the course of construction of the project and

improvements, no substantial alterations shall be made in the

plans and specifications without the approval of the executive

director. The executive director or his designated agent has full

authority to inspect the improvements at any time during

construction to determine if the project is being constructed in

accordance with approved plans and specifications.

(g) If the executive director finds that the project is not

being constructed in accordance with the approved plans and

specifications, the executive director immediately shall notify

in writing by certified mail each member of the board of the

district and its manager. If, within 10 days after the notice is

mailed, the board of the district does not take steps to insure

that the project is being constructed in accordance with the

approved plans and specifications, the executive director shall

give written notice of that fact to the attorney general.

(h) After the attorney general receives the notice, he may bring

an action for injunctive relief, or he may bring quo warranto

proceedings against the directors. Venue for either of these

actions is exclusively in the district of Travis County.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.035, eff.

Sept. 1, 1985.

Sec. 12.083. DISTRICTS; CREATION, INVESTIGATIONS AND BONDS. (a)

The commission succeeds to the duties and responsibilities of

the Texas Water Rights Commission with regard to the creation of

districts as defined by Section 50.001(1) of this code and to

approve or disapprove the issuance of the bonds of all such

districts.

(b) The executive director shall investigate and report on the

organization and feasibility of all districts as defined by

Section 50.001(1) of this code.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977.

SUBCHAPTER E. FEES

Sec. 12.112. FEES: EXEMPTIONS. (a) The commission, the board,

and the Parks and Wildlife Commission are exempted from payment

of any filing, recording, or use fees required by this code.

(b) The board is exempt from payment of any other fees required

by this code or any other statute relating to applications for

water rights or amendments thereto or relating to water resources

administration to the extent the board has not contracted for the

sale of water under a water right on which such fees are based.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.

Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 647, Sec. 4, eff. Aug.

30, 1993.

Sec. 12.113. DISPOSITION OF FEES, ETC. (a) The commission

shall immediately deposit in the State Treasury the fees and

charges it collects.

(b) The commission shall deposit all costs collected under

Subchapter G, Chapter 11 of this code in the State Treasury to

the credit of the watermaster administration account, from which

the commission shall pay all expenses necessary to efficiently

administer and perform the duties described in Sections 11.325

through 11.335 of this code.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.

Sept. 1, 1985; Acts 1997, 75th Leg., ch. 333, Sec. 4, eff. Sept.

1, 1997.

Sec. 12.114. DISPOSITION OF FEES PENDING DETERMINATION. The

commission shall hold all fees, except filing fees, which are

paid with an application until the commission finally determines

whether the application should be granted. If the application is

not granted, the commission shall return the fees to the

applicant.

Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.

Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.

Sept. 1, 1985.